FEDERAL COURT OF AUSTRALIA

MZYLL v Minister for Immigration and Citizenship [2012] FCA 88

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (MZYLL & Anor v Minister for Immigration & Anor [2011] FMCA 554) in which the learned Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“a Protection visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3    The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    For the reasons that follow, I have determined to dismiss the appeal because the appellant has not substantiated his claim that the decision of the Federal Magistrate is infected with any appealable error.

BACKGROUND

5    The appellant is a citizen of Malaysia who arrived in Australia on 12 June 2010. On 8 September 2010 the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) on the grounds that he has suffered discrimination in Malaysia because he is ethnically Chinese. The appellant’s wife also applied for a Protection visa as a dependent member of his family unit. Specifically, the appellant claimed that he was discriminated against because ethnic Chinese do not have equal access to university education in Malaysia. He also claimed that his family’s house was burgled when he was ten years old and that he was jailed (or nearly jailed) when he cooked pork for his customers when he worked as a chef. This was allegedly because in Malaysia pork cannot be consumed or sold in certain areas and that if Chinese people do this they may be arrested and put in jail. The appellant further claimed that he feared harm from local Malays and that the Malaysian authorities would not protect him.

6     By letter dated 1 October 2010 the appellant was invited to contact the Department to arrange an interview with the delegate but failed to do so. A delegate of the first respondent (“the Minister”) refused the application for a Protection visa on 26 October 2010. On 6 December 2010 the appellant applied to the Tribunal for a review of that decision. In a letter from the Tribunal dated 23 December 2010, the appellant was advised that the Tribunal was unable to make a decision favourable to him on the material before it and that a hearing before the Tribunal was listed for 27 January 2011 to enable the appellant to give evidence and present argument. The appellant did not attend the hearing nor communicate with the Tribunal. The Tribunal found the appellant’s claims were very broad and lacking detail. On the very limited evidence before it, the Tribunal was not satisfied the appellant experienced discrimination in relation to university education because of his ethnicity. The Tribunal did not accept the appellant was jailed for cooking pork while working as a chef or that his parent’s house was burgled. Ultimately, the Tribunal concluded that the appellant did not have a well founded fear of persecution if he returned to Malaysia. As the claim made by the appellant’s wife relied upon the outcome of the appellant’s claim, the Tribunal also rejected that claim. On 17 February 2002 the Tribunal affirmed the decision of the delegate under review.

THE FEDERAL MAGISTRATE’S DECISION

7    On 24 March 2011 the appellant lodged an application in the Federal Magistrates Court relying upon the following grounds:

1.    The Tribunal committed a jurisdictional error by failing to comply with the Act.

2.    The Tribunal failed to notify the applicant of the hearing in the absence of the applicant.

3.    The applicant will be at risk of suffering persecution if he returned to Malaysia.

8    In relation to ground one, the Federal Magistrate examined the procedures followed by the Tribunal in corresponding with the appellant at [5]–[15]. At [6]-[10] the Federal Magistrate accepted the Minister’s submission that the hearing invitation was a valid invitation as it complied with the applicable legislative requirements. The Federal Magistrate found that the Tribunal complied with all the required procedures under the Migration Act including:

    Inviting the appellant to attend a hearing before the Tribunal on 27 January 2011 to give evidence as required by s 425(1) of the Migration Act;

    Notifying the appellant of the specific time, day and place of the hearing as required by s 425A(1);

    Sending the invitation via a statutorily prescribed means specified in s 441A, in this case being registered post; and

    Providing the invitation to the appellant in a timeframe which exceeded the prescribed 14 day period, as required by s 435D of the Migration Regulations 1994 (Cth).

9    The Federal Magistrate also noted that within the invitation was contained a statement about the effect of s 426A of the Migration Act describing the options available to the Tribunal if the appellant failed to appear before it, as required by s 425A(4) of the Migration Act. At [11], the Federal Magistrate accepted that the appellant was clearly and properly put on notice by the Tribunal about the hearing and that the Tribunal was validly unable to make a favourable decision on the sparse information before it. At [18] – [26] the Federal Magistrate outlined the Tribunal’s findings and held, at [25], that those findings were findings of fact that were reasonably open to the Tribunal on the evidence before it. The Federal Magistrate dismissed the first ground of review on the basis that no failure to comply with the Migration Act or any other error had been established.

10    The Federal Magistrate dismissed ground two, accepting that the appellant had been properly notified of the hearing including that the notification was sent to the correct address for correspondence provided by the appellant. The Federal Magistrate also set out and relied upon s 426A(1) which allows the Tribunal to proceed to make a decision in the absence of an applicant where the applicant has been properly notified of the hearing.

11    Ground three alleged that the appellant will be at risk of suffering persecution if he returns to Malaysia. The Federal Magistrate observed that this was an allegation of fact which it was open to the Tribunal to reject and dismissed ground three on the basis that no jurisdictional error was substantiated.

GROUNDS OF APPEAL IN THIS COURT

12    On 1 August 2011, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:

1.    Federal Magistrate F. TURNER failed to consider the Second Respondent had committed a jurisdictional error by failing to comply with the Migration Act.

2.     Federal Magistrate F. TURNER failed to consider the appellant face[sic] a risk of suffering persecution if he returns to Malaysia.

3.    Federal Magistrate F. TURNER failed to consider the Second Respondent had not fully considered the appellant was very frightened to return to Malaysia.

13    The appellant’s grounds of appeal were not particularised. Despite orders made on 18 August 2011 allowing the appellant to file and serve written submissions 10 clear working days before the hearing date (by 27 October 2011), none were filed or served. At the hearing on 10 November 2011 the appellant was self-represented and assisted by a Cantonese interpreter. The appellant made short oral submissions essentially restating his grounds of appeal.

Ground One

14    The first ground of appeal contains a broad and unparticularised assertion that the Federal Magistrate failed to consider that the Tribunal had committed a jurisdictional error by failing to comply with the requirements of the Migration Act. The ground fails to identify any statutory procedures that the Tribunal failed to observe and that the Federal Magistrate failed to identify. As outlined above at [8]-[9], the Federal Magistrate found that the Tribunal had complied with all the required statutory processes in corresponding with the appellant. In circumstances where the appellant has not identified any particular processes that he alleges were not complied with and where no non-compliance is apparent, I am not satisfied that any error was made by the Federal Magistrate of the kind alleged. Therefore, ground one should be dismissed.

Ground Two

15    Ground two misconceives the function of the Federal Magistrate. As I have stated earlier, it is neither the role of the Federal Magistrates Court nor of this Court to make a finding on the merits of the appellant’s claim. That a court cannot conduct a merit’s review of the Tribunal’s decision is well established: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 291 (Kirby J). It was not the function of the Federal Magistrate to consider whether the appellant faced a risk of suffering persecution should he be returned to Malaysia. The Federal Magistrate’s function was to consider whether in considering that issue, the Tribunal had made a jurisdictional error of a kind raised by the appellant’s grounds of review.

16    Ground two establishes no error on the part of the Federal Magistrate and must be dismissed.

Ground Three

17    Ground three is somewhat unclear but taking a broad view I will treat it as an allegation that the Federal Magistrate failed to identify that the Tribunal had not fully considered the appellant’s fear of persecution should he be returned to Malaysia. No particulars are given as to the asserted failure and no such failure is apparent.

18    As the Federal Magistrate noted at [14], the appellant did not attend the hearing before the Tribunal and provided very little detail regarding his claims. It is well established that the Tribunal is not compelled to accept the appellant’s claims at face value and that it is for the Tribunal to attribute the appropriate weight to each of the appellant’s claims as part of its fact-finding function: Wu Shan Liang at 281-282 (Brennan CJ, Toohey, McHugh and Gummow JJ). It will be difficult for the Tribunal to achieve the requisite degree of satisfaction to uphold an application and overturn a decision of a delegate where there is scant evidence and the appellant has failed to attend the Tribunal hearing: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] (French, Emmett and Dowsett JJ).

19    To the extent that the appellant put evidence before the Tribunal of his fear of persecution, it appears to have been considered by the Tribunal. No error was made by the Federal Magistrate of the kind alleged by ground three. Ground three should therefore be dismissed.

DISPOSITION

20    As I have found no appealable error, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    14 February 2012